The court ruled unanimously against Presidents Richard Nixon and Bill Clinton when they sought to withhold evidence. But the current court is unlikely to achieve consensus.

By Adam Liptak

May 12, 2020
Updated 6:23 a.m. ET

WASHINGTON — It seems that every 23 years, or about once in a generation, the Supreme Court considers whether presidents must abide by the rules that govern other citizens. In 1974, it unanimously required President Richard M. Nixon to turn over tapes of conversations in the Oval Office. Twenty-three years later, in 1997, it unanimously required President Bill Clinton to respond to a sexual harassment suit.

On Tuesday, almost exactly 23 years after the ruling in the Clinton case, the court will confront an equally significant showdown, this one over President Trump’s efforts to block demands from two House committees and New York prosecutors for his tax returns and other financial information.

The earlier cases were argued in the courtroom, with only those attending able to hear them live. Tuesday’s arguments will be heard by telephone because of the coronavirus pandemic, and the public will be able to listen in.
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The cases will test the Supreme Court, which is unlikely to produce the consensus achieved by the justices in the earlier disputes, in which the appointees of Mr. Nixon and Mr. Clinton all voted against the presidents who had put them on the court. Mr. Trump has appointed two members of the current court, Justices Neil M. Gorsuch and Brett M. Kavanaugh.

Mr. Trump, represented by private lawyers, has made broad claims in the cases, including that he may not be criminally investigated as long as he remains in office. But the justices will also be concerned about the possibility of investigations driven by partisanship rather than a legitimate need for information.

The cases concern subpoenas from Manhattan prosecutors and House committees seeking information from Mr. Trump’s accountants and bankers, not from the president himself. The firms have indicated that they will comply with the subpoenas unless the Supreme Court rules that they may not.

Had prosecutors sought evidence from Mr. Trump himself, there was at least a possibility that he would try to defy a Supreme Court ruling against him, prompting a constitutional crisis.

One of the subpoenas was directed to Mr. Trump’s accountants, Mazars USA, by the office of the Manhattan district attorney, Cyrus R. Vance Jr., a Democrat. It arose from an investigation by the office into hush-money payments to two women who said they had affairs with Mr. Trump. The president has denied the relationships.

It was in the case from Manhattan that Mr. Trump’s lawyers argued that he was beyond the reach of the criminal justice system so long as he remained in office.

The United States Court of Appeals for the Second Circuit, in New York, rejected Mr. Trump’s request to block the subpoena in a narrow ruling, saying only that state prosecutors may require third parties to turn over a sitting president’s financial records for use in a grand jury investigation.

Mr. Trump has fought hard to shield his tax returns from scrutiny, for reasons that have been the subject of much speculation. In a footnote to the Second Circuit’s decision, Chief Judge Robert A. Katzmann, writing for a unanimous three-judge panel, said that Mr. Trump’s break with his predecessors’ practice was significant.

“We note that the past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public,” Judge Katzmann wrote. “While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office.”

The other subpoenas the Supreme Court will consider on Tuesday are from House committees seeking various kinds of financial information that they say will aid them in their oversight and legislative responsibilities.

One of them, from the House Financial Services and Intelligence Committees, was addressed to two financial institutions that did business with Mr. Trump, Deutsche Bank and Capital One. The committees have sought an array of financial records related to the president, his companies and his family.

The records sought from Deutsche Bank — which for two decades was the only mainstream financial institution consistently willing to do business with Mr. Trump — extend far beyond the president’s tax returns. The subpoenas demand that the bank hand over detailed information about the accounts of Mr. Trump, his family and his companies.

That includes information as detailed as any instances of more than $10,000 being transferred in or out of the accounts, and whatever information Mr. Trump provided when he opened accounts, sought loans and received other services.

The subpoenas also cover Deutsche Bank’s internal records, including a number of specific employees’ communications related to the Trump accounts, as well as any materials about employees’ concerns surrounding potentially suspicious activity in those accounts. Those records would most likely shed light on concerns raised by Deutsche Bank anti-money-laundering officers in recent years.

A different three-judge panel of the Second Circuit ordered most of the requested materials to be disclosed. It made an exception for sensitive personal information unrelated to the committees’ investigations.

“The committees’ interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a chief executive’s distraction arising from disclosure of documents reflecting his private financial transactions,” Judge Jon O. Newman wrote for the majority.

Lawyers for the House have told the Supreme Court that the subpoenas are proper.

“Congress has constitutional power to issue a subpoena if the subpoena is related to a valid legislative purpose,” the House lawyers wrote in a brief. “A subpoena relates to such a purpose if it seeks information that will inform Congress on a subject on which legislation could be had.”

Mr. Trump’s lawyers responded in a brief that “these subpoenas are no more valid than would be demands for the president’s medical records so Congress may consider health care reform.”

The Supreme Court is dominated by five Republican appointees. But the court’s decisions in the Nixon and Clinton cases did not break along partisan lines.

The Nixon case led to his resignation in the face of mounting calls for his impeachment. The Clinton case led to Mr. Clinton’s impeachment, though he survived a Senate vote on his removal.